Preemptive Rule

New Page -- 8 June 2005

Preemptive Rule is any scenario of societal governance which presumes the legitimacy of doing what would be considered to be morally and/or ethically wrong simply on the basis that such action might ultimately prevent a future -- predicted but not guaranteed -- greater wrong. It is the societal equivalent of the End Justifying the Means.

The fundamental difficulty in any preemptive premise is that it is seldom limited to one single aspect of society. Once it is established in the macro; it naturally gravitates to every other facet of the micro. Conversely, if a preemptive mentality is considered illegitimate in day-to-day individual interactions, then it should logically be considered illegitimate in the larger picture. It is fundamently wrong to claim legitimacy at one level while assuming illegitimacy at another.

Take, for example, the macro level concept of preemptive war.

One of the fundamental rules or principles of international law is the prohibition against any nation undertaking a preemptive strike or attack -- typically a unilateral 'first strike' -- against another nation, except in the face of an imminent armed threat. Preemptive war "may be sanctioned under international law, but requires the nature of the threat to be credible and significant." [1] The Wikipedia definition concurs: "A preemptive attack (or preemptive war) is waged in an attempt to repel or defeat an imminent offensive or invasion, or to gain a strategic advantage in an impending (usually unavoidable) war."

U.S. Secretary of State Daniel Webster said in 1841 that preemption "is justified only in response to an imminent threat; moreover, the force must be necessary for self-defense and can be deployed only after nonlethal measures and attempts to dissuade the adversary from acting had failed. Furthermore, a preemptive attack must be limited to dealing with the immediate threat and must discriminate between armed and unarmed, innocent and guilty." [2] One cannot, for example, launch an attack, invade, and then occupy the defeated nation if the initial invasion removed the threat.

Alan Bock in his essay, "Eye on the Empire" [3], noted that during the 1967 Six Day War, Israel attacked first, but Egyptian and Syrian troops had been massing on the border and air forces were being mobilized. And while some experts might continue to debate the issue, there was an imminent threat. [The difficulty, of course, lies in the fact that while the war was over in six days, Israel has since continued to occupy portions of the territory which had orginally belonged to the defeated nations.] Furthermore, in the case of the United States' invasion of Iraq in what became known as the Second Gulf War, there was clearly not an imminent threat. (There might even be some question as to whether or not there was a plausible threat.)

Steven C. Welsh, a CDI Research Analyst, has written [4] that outside the framework of the United Nations' Security Council -- essentially an ad hoc coalition formed after World War II to deter future Hitlers -- "it is not definitively clear whether under the UN Charter a state retains a traditional right of self-defense, including a right of anticipatory self-defense against an imminent threat, or if that right is curtailed to not include anticipatory self-defense."

The UN Charter does, however, effectively authorize preemptive acts by theSecurity Council. This constitutes your basic 'might makes right' argument, in that the permanent members of the Security Council -- those who have veto power -- are the nations which won World War II. Not only is history written by the winners, but the rules and laws thereafter are also written, interpreted and enforced by the winners. Honorable mentions need not apply for such exalted authority. Still, the idea that one nation cannot unilaterally take matters into their own hands and launch an invasion does have some merit. Obtaining the agreement of other parties is very likely a good thing. [Think of it as co-sponsors of a bill in Congress. If only one member of Congress is interested in the bill, then why should anyone else even bother to read it? But if there are a large number of members, then it's time to bring this one out of committee.]

Defensive Postures

One aspect worth mentioning is Welsh's use of the phrase "anticipatory self-defense". This sounds a bit less theatening than "preemptive attack" (or even "shock and awe"), but it also brings up a critical factor in the discussion; this is the issue of self-defense.

It is generally assumed that the most basic instinct of human beings is that of self-preservation. Accordingly, it is fundamental to basic criminal law that killing someone in self-defense is not a crime. Everyone has the inalienable right to protect themselves and to preserve their lives against any overt attack by others. This right of a sovereign entity has been extended to the conduct of nations [even if the legitimacy of such an extension is not typically considered nor debated.] Theoretically, sovereign nations derive their authority from the consensus of sovereign individuals.

Accordingly, from the sovereign nation perspective, the "right and obligation of a governing authority to use force to defend its citizens against an aggressor predates by centuries modern nation-states and modern international law. Christian just war theory, upon which the modern laws of armed conflict are based, recognized such a duty as early as the 4th Century. Since their emergence in the 16th Century, modern nation-states have been believed to hold such a right. [However...] While aggression is traditionally considered unlawful, and self-defense lawful, more problematic is the question of whether a first-strike could ever be considered a defensive act rather than an act of aggression. The right of anticipatory self-defense assumes that an aggressor is poised to strike and that one acts defensively in anticipation of the attack rather than waiting for the attack to occur. Traditionally, it was deemed theoretically possible that even a first-strike could be deemed defensive in nature, and lawful, if it was to forestall an attack that was imminent." [4]

In a related issue, Paul W. Schroeder, writing in the American Conservative Magazine [5] makes the point that instead of judgments on future military and political developments, the argument should be based on principles. Schroeder goes on to contend that "an American campaign to overthrow Hussein by armed force would be an unjust, aggressive, imperialist war which even if it succeeded (indeed, perhaps especially if it succeeded), would have negative, potentially disastrous effects on our alliances and friendships, American leadership in the world, the existing international system, and the prospects for general peace, order, and stability. In other words, a preemptive war on Iraq would be not merely foolish and dangerous, but wrong."

Schroeder then argues that to justify a preemptive war or attack -- regardless of whether or not it meets some international law -- requires the attacker to show that "the threat to be preempted is (a) clear and imminent, such that prompt action is required to meet it; (b) direct, that is, threatening the party initiating the conflict in specific concrete ways, thus entitling that party to act preemptively; (c) critical, in the sense that the vital interests of the initiating party face unacceptable harm and danger; and (d) unmanageable, that is, not capable of being deterred or dealt with by other peaceful means. These criteria are naturally open to interpretation and contest."

It's the latter statement which always raises the war-of-words opening salvo. But the principles are nevertheless clear. Schroeder's four essential requirements for any form of preemptive attack are an essential ingredient in any civilized community -- whether the community in question is one of nations or individuals.

The point to be made is that these same principles and underlying ingredients can be applied to a whole host of situations other than just two nations using armies to slug it out. An application, for example, can be made in any criminal law situation where someone poses an imminent threat and the intended victim turns the tables and kills, maims, or wounds the would-be assailant.

Fundamentally, the means by which we judge the justice or rightness of a preemptive war must be the same means by which we judge the interactions between individuals, as well as between individuals and governing authorities.

Therefore, someone claiming self-defense as a reason for their using terminal force to protect themselves must be able to show that Schroeder's four requirements have been met in their individual situation -- or that a reasonable person would have interpreted the situation in a similar manner. Unfortunately, even here the existence of the criteria is "open to interpretation and contest."

For example, a robber breaks into a home, and when confronted by the homeowner who is armed turns to flee, and his shot in the back. Does this situation meet the four criteria? On the face of it, the fact of the intruder turning his back (as if to make an escape) is not a priori a retreat. The intruder might have been attempting a feint before retrieving a weapon. In addition, the intruder has demonstrated conclusively his intentions to invade the homeowner's premises, and once having escaped the wrath of the homeowner, might well return (and possibly more heavily armed the second time).

The legal, moral, and ethical question is whether the homeowner is legally justified in shooting an intruder in the back? The definitive answer is almost certainly: Maybe.

The point must be made, however, that the difficulty of ascertaining whether or not all of the criteria for a pre-emptive strike are met... this difficulty should not dissuade us from attempting to apply the criteria in all cases. It's still the best litmus test we have. The difficulty in such crisis situations is that there is no time to consider and reconsider our actions. There is also a distinctive lack of complete information.

These latter difficulites, however, are not problems when it comes to preemptive attacks involving a government and individuals under its sway -- particularly where the government takes preemptive action against one or more individuals. Inevitably, in the process of establishing statutory law to preempt a person's liberties there is more than enough time and interest to thoroughly consider the matter.

Statutory Law

There are, on the one hand, those situations which have received considerable media attention in which law enforcement officers took preemptive action against individuals in the form of raids on homes and businesses, shootings upon the slightest pretext of the individual being a threat, and strong arm tactics, prisoner abuse, and other forms of "shoot first, ask questions later." Those situations which did indeed receive sufficient media attention have tended by and large to favor the side of the individual and in the process find the actions of the law enforcement agencies to be at fault. There are always exceptions, but the fact remains that law enforcement officers often go too far in their quest to protect and serve [albeit all indications are that law enforcement officials are seeking first and foremost to protect and serve themselves]. The sad part is that while individuals may be wounded or killed, the general rule is that the officer(s) on the front line will receive a relatively paltry slap on the hand, while the authorities which may have ordered an ill conceived raid almost always get off scot-free.

One can almost empathize with officers who in the line of duty must undergo a great deal of stress, and thus might be forgiven for temporary lapses of their own rules and procedures. But when there is no stress involved, and the government is simply excercising the rule that those with the guns get to do what they want, then we may have a potentially serious problem.

Well, Houston, we do have a problem. Preemptive assaults on individuals in order to ostensibly prevent them from committing a crime of greater magniture in the future is ipso facto wrong. In general such statutory laws come under the category of victimless crimes, statutory laws which go far beyond the necessities of Common Law, and instead are designed to intimidate, cow, and control the masses -- while at the same time imposing fines and levies in order to fund the ever-expanding government.

Consider the obvious case of speeding laws. There is simply no justification at all for speeding laws until and unless they involve serious reckless driving, i.e. going far too fast for conditions and traffic. The simple expedient of charging someone with speeding when there is nothing remotely akin to imminent threat to anyone else is tantamount to armed robbery -- in this case the police being armed and robbing the individual on behalf of the government which, incidentally, pays the police salaries. And just for good measure, they will always throw in the additonal charge of not wearing a seat belt.

It is one thing to assume that a car driving in excess of some arbitrarily set speed limit (with emphasis on arbitrarily set) will result in an injury to someone else or their property. It is quite another to impose a limit on an individual's freedom or liberty in order to prevent possible injury to that same individual. The degree to which government has taken upon itself the mantle of Big Brother in order to prevent individuals from doing or not doing things which concern only themselves is truly horrific.

(6/15/05) Another, more recent example is the U.S. Supreme Court's decision against the use of medical marijuana (as allowed by California state law). In Gonzales v. Raich, we encounter once again fears of possible misuse of a beneficial substance being the justification for denying its use for serious medical problems. The fact the Court used irrational and illogical reasoning about interstate commerce and the like is largely irrelevant. The real gist is that six old people who have ready access to booze and (legally prescribed) drugs have decreed that the suffering of others cannot be relieved, if only because the relevant law enforcement agency might find itself having to work just a bit harder. Accordingly, the Supreme Court has launched its own preemptive assault on California's Compassionate Use Act.

Worse yet, the end result of imposing upon the populace a preemptive assault on the basis that at some point in the future an individual's continuing behavior might result in damage or injury to themselves or others is that the society becomes accustomed to preemptive assaut at every level. One particular consequence is that fifty or a hundred thousand "others" may die in a wholly immoral and unethical war, and hardly anyone notices or questions the authority deciding to go to war.

There is never any good to be had when someone or some group assumes omniscience and believes they can predict with great certainty what others will do.

The movie, Minority Report, has as its premise the idea of three brilliantly precognitive entities being able to predict future crimes, and that as a result a special task force routinely goes about conducting preemptive assaults on the supposed perpetrator(s) in order to... theoretically... prevent the crime from ever happening. The assumption is that the crime was inevitable except for the early intervention, and thus the use of SWAT teams of the future is perfectly legitimate and moral. The title of the movie, meanwhile, comes from a secret document which purports to provide evidence that the reliability of the system is much less than envisioned or popularized, and thus there will be many interventions which were both unnecessary and which in the end will result in the alleged criminal-to-be becoming instead the victim of the system, aka the government.

More true to reality examples include Ruby Ridge (where well armed law enforcement officials went out of their way to attack someone who had armed himself and in the process killed a pregnant woman instead). It also includes Waco and the Branch Davidians, where law enforcement officials at the highest level of the federal government authorized, launched and condoned a massacre of innocent men, women and children. What was the justification? There's never been a satisfactory answer, or at least an answer acceptable to open minded realists.

[11/04/06] More recently, Amy Waldman [6] has reported on the case of Hamid Hayat, wherein she writes:

"Abroad, the government has pursued a doctrine of preemptive war. At home, it has pursued a strategy of what might be called preemptive prosecution." "This preemptive strategy represents a major moral and legal change in the American approach to justice." It's all about "...the ambiguity of punishing 'dangerousness'."

The Bush Administration has used laws that "allow the government to bring terrorism related charges even when no terrorism has occurred." This constitutes what David Cole, a professor at Georgetown University Law Center, has called an "inevitably speculative endeavor."

"After nine days of deliberations, Hamid Hayat's jury found him guilty on four counts: one count of providing material support or resources to terrorism [in essence, undergoing training and being a Muslim], and three counts of lying about it." A key juror, a retired salesman who had considerable influence over the jury, said that in the end he couldn't take a chance on the Defendant who might commit a crime in the future. There are "so-called new rules of engagement, and I don't want to see the government lose its case."

This statement should be sufficient to turn anyone's blood cold, when they find what appears to be an intelligent juror saying that the goverment winning is more important than the guilt or innocence of a defendant. But then this same juror also said "that it was 'absolutely' better to run the risk of convicting an innocent man than to let a guilty one go. 'Too many lives are changed.' by terrorism, he said. 'So shall one man pay to save fifty? It's not a debatable question'."

However... as Amy Waldman pointed out, "...prosecuting and imprisoning one innocent man would do nothing, in fact, to save the fifty at risk." Our juror must be one fearful little man.

The fact remains that lacking the directives of a truly omniscience, all-knowing god and/or goddess, there is simply no possibility of ever being able with certainty to predict an imminent threat. The only hope for less than omniscience individuals or governments is to resort to a tried and true legal criteria. In other words, what is needed is more than a "preponderance of evidence." What is needed is the determination of an imminent threat beyond a reasonable doubt.

Furthermore, any determination of such an imminent threat under these circumstances must be made by a consensus or near consensus of several independent authorities. On the world scale, this implies several sovereign nations -- for example, the UN Security Council or similar concordance. On the smaller scale -- especially in situations which have little or no time for deliberation -- one must trust to good intentions and the necessity of paying the price for being wrong.

Meanwhile, in the case of a government's preemptive assaults on its citizens, there's really no excusel. A return to Common Law and the elimination of victimless crimes would accomplish the task, and simultaneously set the stage for a society less prone to wage war on a nation whose principal crime was not being a fan of the aggressor nation.

The need is to replace Preemptive Rule with something a bit more enlightened. Maybe something like: innocent until proven guilty beyond a reasonable doubt.